**Exhibit 10.19**

 

**AMENDEDAND RESTATED CONSULTING AGREEMENT**

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AMENDED AND RESTATED CONSULTING AGREEMENT(this “Agreement”), by and between SCL Ventures, Ltd. (the “Company”), andAnthony F. Giordano (the “Consultant”).

 

W I T N E S S E T H:

 

The Company desires to engage the Consultantto render consulting services to it and the Consultant is willing to providesuch consulting services to the Company, on the terms and conditions hereinprovided.

 

In order to effect the foregoing, the partieshereto wish to enter into a consulting agreement on the terms and conditionsset forth below.  Accordingly, inconsideration of the premises and the respective covenants and agreements ofthe parties herein contained, and intending to be legally bound hereby, theparties hereto agree as follows:

 

# **1.**               Engagement.  The Companyhereby agrees to engage the Consultant to provide consulting services to theCompany pursuant to the terms and conditions of this Agreement and theConsultant hereby agrees to provide such services to the Company.

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# **2.**               Term.

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## ***(a)***                                  The term of thisAgreement (the “Term”) shall commence on April 1, 2004 and, unlesssooner terminated pursuant to paragraph (b) of this Section 2, shallterminate on March 30, 2006; provided, however, thatnotwithstanding the foregoing, the Term shall thereafter be automaticallyextended for each succeeding one (1) year period, unless either party heretoshall provide the other party with written notice at least ninety (90) daysprior to the end of the then current Term, advising that the party providingthe notice shall not agree to so extend the Term.

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## ***(b)***                                 The Company or theConsultant may terminate this Agreement at any time upon sixty (60) days priorwritten notice; provided, however, that the Company may agree toreduce or waive such prior written notice requirement by written agreement withthe Consultant.

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## ***(c)***                                  Upon the termination ofthis Agreement pursuant to paragraph (b) of this Section 2, neither theCompany nor the Consultant shall have any liability or obligation to the other,except for (i) the obligation of the Company to pay the Consultant any due andpayable consulting fee pursuant to Section 5 for his consulting servicesrendered to the Company prior to the termination of this Agreement, (ii) theobligation of the Company to reimburse expenses incurred by the Consultantpursuant to Section 6 and (iii) the restrictive covenant obligations ofthe Consultant pursuant to Section 7, all of which shall survive suchtermination; provided, however, that if the Company shall terminatethis Agreement pursuant to paragraph (b) of this Section 2, other than onaccount of its reasonable determination that the actions or inaction of theConsultant in the performance of (or failure to perform) his duties under thisAgreement were willfully negligent, constituted willful misconduct or werematerially injurious to the business affairs of the Company, within thirty (30)days of such termination, the Company shall also make a lump sum cash paymentto the Consultant in the aggregate amount of the remaining monthly consultingfee payments the Consultant would have received from the Company underSection 5 through the end of the then Term, had such termination notoccurred.

 

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# **3.**               Consulting Services. During the Term, the Consultant shall provide such consulting servicesto the Company as the Company shall agree upon mutually with the Consultant,including but not limited to those set forth on Exhibit A hereto (which Exhibitmay be amended in writing as agreed to by the Company and the Consultant).

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# **4.**               Nature of Relationship. The Consultant shall perform his consulting services hereunder in thecapacity of an independent contractor and not as an employee of theCompany.  Any provision to the contraryin this Agreement notwithstanding, the Consultant shall have no power orauthority to execute or otherwise enter into any agreement on behalf of, or inany way to bind, the Company.  TheConsultant shall not be considered as being employed by the Company for anypurpose, including without limitation, with respect to employee benefitsgenerally applicable to the Company’s employees.  The Company shall carry no workers’ compensation insurance orhealth or accident insurance for the Consultant.  The Company shall pay no amounts on account of the Consultant forpurposes of Social Security, unemployment insurance or federal or statewithholding taxes and the Company shall not provide any other contributions orbenefits for the Consultant which might be expected in the context of anemployer-employee relationship.

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# **5.**               Consulting Fee. Upon the full execution of this Agreement, the Company shall pay theConsultant a one-time initial consulting fee equal to One Hundred FiftyThousand Dollars ($150,000).  In addition,during the Term, the Company shall pay the Consultant a monthly consulting fee,in arrears, in an amount equal to Twenty Thousand Dollars ($20,000), with eachsuch monthly payment being payable on the first business day of the Company ofeach next succeeding month.

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# **6.**               Expenses.  During the termof this Agreement, the Company shall, upon receipt from the Consultant ofappropriate documentation consistent with the Company’s regular corporatepolicies regarding expense reimbursement, reimburse the Consultant for hisordinary and customary expenses incurred in performing his consulting serviceshereunder, including expenses for non-commutation travel, all in accordancewith the Company’s regular corporate policies regarding expense reimbursement; provided,however, that if the Consultant is to incur expenses in connection withany single business activity or trip in excess of Twenty-Five Thousand Dollars($25,000), the Company shall not reimburse such expenses unless the Consultantobtains the consent of the Company’s Chief Executive Officer or Chief FinancialOfficer thereto.

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# **7.**               Restrictive Covenants.

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## ***(a)***                                  Reasonable Covenants.  It is expressly understood by and betweenthe Company and the Consultant that the covenants contained in thisSection 7 are an essential element of this Agreement and that but for theagreement by the Consultant to comply with these covenants and thereby not todiminish the value of the organization and goodwill of the Company or anyaffiliate or subsidiary of the Company, including relations with theiremployees, clients, customers and accounts, the Company would not enter intothis Agreement.  The Consultant hasindependently consulted with his legal counsel and after such consultation agreesthat such covenants are reasonable and proper.

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## ***(b)***                                 Noncompetition; NoDiversion of Customers; No Solicitation of Employees, Etc.  During the term of this Agreement and forone (1) year after the end of the term of this Agreement, the Consultant shallnot:

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### **(i)**                                     engage, anywhere within the geographicalareas in which the Company, and/or any of its affiliates or subsidiaries haveconducted their business operations or provided services as of the date hereofor at any time prior to the end of the term of this Agreement, directly orindirectly, alone, in association with or as a shareholder, principal, agent,partner, officer, director, employee or consultant of

 

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any other organization, in any business conducted by the Company or anyof its affiliates or subsidiaries;

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### **(ii)**                                  divert to any competitor of the Companyor any of its affiliates or subsidiaries, any customer of the Company or any ofits affiliates or subsidiaries;

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### **(iii)**                               solicit or encourage any officer,employee or consultant of the Company or any of its affiliates or subsidiariesto leave the employ of the Company or any of its affiliates or subsidiaries foremployment by or with any competitor of the Company or any of its affiliates orsubsidiaries;

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provided, however, that the Consultant mayinvest in stocks, bonds or other securities of any competitor of the Company orany of its affiliates or subsidiaries if:

 

#### **(A)**                              such stocks, bonds, or other securities are listed on any national orregional securities exchange or have been registered under Section 12(g)of the Securities Exchange Act of 1934;

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#### **(B)**                                his investment does not exceed, in the case of any class of the capitalstock of any one issuer, one percent (1%) of the issued and outstanding shares,or, in the case of other securities, one percent (1%) of the aggregateprincipal amount thereof issued and outstanding; and

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#### **(C)**                                such investment would not prevent, directly or indirectly, thetransaction of business by the Company and/or of its affiliates or subsidiarieswith any state, district, territory or possession of the United States or anygovernmental subdivision, agency or instrumentality thereof by virtue of anystatute, law, regulation or administrative practice.

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If, at any time, the provisions of thisSection 7(b) shall be determined to be invalid or unenforceable by reasonof being vague or unreasonable as to area, duration or scope of activity, thisSection 7(b) shall be considered severable and shall become and shall beimmediately amended solely with respect to such area, duration and scope ofactivity as shall be determined to be reasonable and enforceable by the courtor other body having jurisdiction over the matter and the Consultant herebyagrees that this Section 7(b) as so amended shall be valid and binding asthough any invalid or unenforceable provision had not been includedherein.  Except as provided in thisSection 7, nothing in this Agreement shall prevent or restrict theConsultant from engaging in any business or industry in any capacity.

 

## ***(c)***                                  Nondisclosure of ConfidentialInformation.  TheConsultant shall keep secret and confidential and shall not disclose to anythird party in any fashion or for any purpose whatsoever, any informationregarding this Agreement, or any other information regarding the Company or itsaffiliates or subsidiaries which is not available to the general public, and/ornot generally known outside the Company or any such affiliate or subsidiary, towhich he has or shall have had access at any time during the course of hisconsulting engagement with the Company, including, without limitation, anyinformation relating to the Company’s (and its affiliates’ or subsidiaries’):

 

### **(i)**                                     business, operations, plans, strategies,prospects or objectives;

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### **(ii)**                                  products, technologies, processes,specifications, research and development operations and plans;

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### **(iii)**                               customers and customer lists;

 

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### **(iv)**                              distribution, sales, service, support andmarketing practices and operations;

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### **(v)**                                 financial condition and results ofoperations;

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### **(vi)**                              operational strengths and weaknesses; and

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### **(vii)**                           personnel and compensation policies andprocedures.

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Notwithstanding the foregoing provisions ofthis Section 7, the Consultant may discuss this Agreement with the membersof his immediate family and with his personal legal and tax advisors and maydisclose the existence of his consulting relationship with the Company to anythird party.

 

## ***(d)***                                 Specific Performance.  Without intending to limit the remediesavailable to the Company or its affiliates or subsidiaries, the Consultanthereby agrees that damages at law would be an insufficient remedy to theCompany or its affiliates or subsidiaries in the event that the Consultantviolates any of the provisions of this Section 7, and that, in addition tomoney damages, the Company or its affiliates or subsidiaries may apply for and,upon the requisite showing, have injunctive relief in any court of competentjurisdiction to restrain the breach or threatened breach of or otherwise tospecifically enforce any of the covenants contained in this Section 7.

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# **8.**                                       Non-Assignability. Except with the written consent of both parties, neither the Consultantnor the Company shall have any right to anticipate, alienate, sell, assign,transfer, pledge, encumber or otherwise dispose of any right, interest, benefitor payment under this Agreement and any attempted anticipation, alienation,sale, assignment, transfer, pledge, encumbrance or other disposition of any ofsuch rights, interest, benefits or payments contrary to the provisions hereofshall be null and void and without effect. All rights, interests, benefits and payments under this Agreement shall,to the maximum extent permitted by law, be exempt from the claims of anycreditor or other person prior to the actual receipt thereof by the personentitled to receive the same hereunder. Notwithstanding anything to the contrary contained in thisSection 8, the Consultant’s rights to receive payments hereunder may betransferred by will or the laws of descent and distribution.

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# **9.**                                       Parties Bound. The rights and obligations of the Company under this Agreement shallinure to the benefit of and shall be binding upon its affiliates, subsidiaries,successors and assigns.

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# **10.**                                 Notice.  For the purposesof this Agreement, notices, demands and all other communications provided forherein shall be in writing and shall be deemed to have been duly given whendelivered or (unless otherwise specified) mailed by United States certified orregistered mail, return receipt requested, postage prepaid, addressed asfollows:

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If to the Consultant:

 

Anthony F. Giordano

20678 North West 27th Avenue

Boca Raton, Florida 33434

 

If to the Company:

 

SCL Ventures, Ltd.

515 East Las Olas Boulevard, Suite 1350

Fort Lauderdale, Florida 33011

 

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or to such other address as either party may have furnished to theother in writing in accordance herewith except that notices of change ofaddress shall be effective solely upon their receipt.

 

11.                                 Severability.  If any provision of this Agreement (or parthereof) shall be held to be invalid or unenforceable under applicable law, theinvalidity or unenforceability thereof shall not affect the validity orenforceability of the remaining provisions hereof and each such other provision(or the remainder of such provision) shall, to the full extent consistent withapplicable law, continue in full force and effect.

 

12.                                 Booksand Records.  The Consultant herebyagrees that all books and records relating in any manner to the business of theCompany or that of its affiliates or subsidiaries, and all other files, booksand records and other materials owned by the Company or its affiliates orsubsidiaries or used by them in connection with the conduct of their businesses,whether prepared by the Consultant or otherwise coming into the Consultant’spossession, shall be the exclusive property of the Company or its affiliates orsubsidiaries regardless of which party prepared the original material, books orrecords.  All such books, records andother materials shall be returned immediately to the Company or its affiliatesor subsidiaries upon the termination of the Consultant’s services hereunder.

 

13.                                 Successors.  Notwithstanding anything to the contrarycontained in Section 8, this Agreement cannot be assigned by the Companyor its affiliates or subsidiaries except that it shall be binding automaticallyon any successors and assigns of all or substantially all of the businessand/or assets of the Company (whether direct or indirect, by purchase, merger,consolidation or otherwise).  ThisAgreement and all rights of the Consultant hereunder shall inure to the benefitof and be enforceable by the Consultant’s personal or legal representatives.

 

14.                                 Arbitration.  Except as provided in Section 7(d), allcontroversies, claims or disputes arising out of or relating to this Agreement,shall be settled by arbitration under the rules of the American ArbitrationAssociation, as the sole and exclusive remedy of either party, and judgmentupon such award rendered by the arbitrator(s) may be entered in any court ofcompetent jurisdiction.  The costs ofarbitration shall be borne by the unsuccessful party or otherwise as determinedby the arbitrators in their discretion. Arbitration shall be held in Fort Lauderdale, Florida.

 

15.                                 GoverningLaw.  The validity, interpretation,construction and performance of this Agreement shall be governed by the laws ofthe State of Florida without regard to conflicts of law principles.

 

16.                                 Amendments.  No provision of this Agreement may bemodified, waived or discharged unless such waiver, modification or discharge isagreed to in writing signed by the Consultant and such officer of the Companyas may be specifically designated for such purpose by the Company.  No waiver by either party hereto at any timeof any breach by the other party hereto of, or compliance with, any conditionor provision of this Agreement to be performed by such other party shall bedeemed a waiver of similar or dissimilar provisions or conditions at the sameor at any prior or subsequent time.  Noagreements or representations, oral or otherwise, express or implied, withrespect to the subject matter hereof have been made by either party which arenot set forth expressly in this Agreement.

 

17.                                 Counterparts.  This Agreement may be executed in one ormore counterparts, each of which shall be deemed to be an original but all ofwhich together shall constitute one and the same instrument.

 

18.                                 EntireAgreement.  This Agreement sets forththe entire agreement of the parties hereto in respect of the subject mattercontained herein and supersedes all prior agreements, promises, covenants,arrangements, communications, representations and/or warranties, whether oralor written, by any officer, employee or representative of any partyhereto.  The parties hereto herebyacknowledge that no agreement or representation, oral or otherwise, express orimplied, with respect to the subject matter hereof has been made by eitherparty which is not set forth expressly in this Agreement.

 

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19.                                 HoldHarmless.  The Company hereby agreesto hold harmless the Consultant from any liability arising out of theConsultant’s performance under this Agreement to the fullest extent permittedby law for a director or officer of the Company, except to the extent of theConsultant’s gross negligence or willful misconduct.

 

20.                                 Survival.  The obligations of the partieshereto contained in Sections 2(c), 7, 14 and 19 shall survive the terminationof this Agreement.

 

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IN WITNESS WHEREOF, the parties have executedthis Agreement to be effective as of the Effective Date set forth inSection 2(a) hereof.

 
| ATTEST:            | SCL VENTURES, LTD.  |                       |
|--------------------|---------------------|----------------------------|
|               |                |                       |
| /s/ Kathrine Berry |                | By:                        | /s/ Mitchell J. Sepaniak |   |
| Kathrine Berry     |                | Name: Mitchell J. Sepaniak |
|               |                | Title:                     | President and  Chief Executive Officer |
|               |                |                       |
|               |                |                       |
| ATTEST:            |                |                       |
|               |                |                       |
| /s/ Kathrine Berry |                | /s/ Anthony F. Giordano    |   |
| Kathrine Berry     | Anthony F. Giordano |                       |
|                    |                     |                            |  |  |  |  |

 

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